Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  APPELLATE PROCEDURE – improper relief – where Sheriff’s Civil Service Board elected to contract with Department of Administrative Hearings to conduct disciplinary hearings, provisions of Administrative Procedures Act governed judicial review of administrative decision – APA requires review by direct appeal to district court rather than petition for certiorari in circuit court.  Petition dismissed for lack of jurisdiction.  Bradshaw v. Pinellas County Sheriff’s Civil Service Board, No. 08-000030-88B (Fla. 6th Cir. App. Ct. February 24, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOHN BRADSHAW,

                  Petitioner,                                                 

 

vs.                                                                                            Appeal No.:  08-000030AP-88B                                                                               

                                                                                                UCN:  522008AP000030XXXXCV

PINELLAS COUNTY SHERIFF’S

CIVIL SERVICE BOARD,

                  Respondent.

__________________________________/

 

ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE is before the Court on the Petition for Writ of Common-Law Certiorari from the Pinellas County Sheriff’s Civil Service Board.  The Petitioner, John Bradshaw (“Petitioner” or “Bradshaw”), seeks review of a Final Order by the Respondent, Pinellas County Sheriff’s Civil Service Board (“Respondent” or “Board”), that imposed disciplinary action on Bradshaw for alleged violations of policies and procedures of the Pinellas County Sheriff’s Office (“PCSO”).   Upon review of the briefs and the record and being fully advised otherwise, the Court finds that the Petition must be dismissed.

            The record reveals that Bradshaw is a law enforcement deputy employed by the Pinellas County Sheriff’s Office.  On September 22, 2006, Bradshaw was involved in an automobile accident while on duty in Pinellas County.  

            By inter-office memoranda dated August 10, 2007, Pinellas County Sheriff Jim Coats (“Sheriff”) suspended Bradshaw for four days for a violation of PCSO General Order 3-1.3 Rules and Regulations; 3.3 Knowledge, and Obedience to, Laws and Rules and Regulations; and 3.4(d) Performance of Duty.  Specifically, the Administrative Investigations Division, Inspections Bureau of the PCSO, concluded in its investigation:

While engaged in a high speed pursuit, [Bradshaw] ran a red light at a minimum speed of 57 miles per hour and collided with a civilian vehicle which had already entered the intersection.  Serious injuries were sustained by both drivers and a passenger in the civilian vehicle.

 

Bradshaw served his suspension on August 23 through 26, 2007.

            Thereafter, Bradshaw and the Pinellas Lodge No. 43, Fraternal Order of Police[1] filed a Petition for Permanent Injunctive Relief in the Circuit Court in and for Pinellas County, Florida, Case No.: 07-010513-CI-13, seeking permanent injunctive relief pursuant to the Florida Police Officer’s Bill of Rights, Florida Statutes § 112.534.  Petitioners sought to enjoin the PCSO from imposing the disciplinary action for failure to comply with § 112.532(6)(a), which provides in pertinent part: 

Except as provided in this subsection, disciplinary action . . . may not be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct.

 

Id.  Petitioner also sought rescission of the discipline by the PCSO for this violation.

            Respondent PCSO filed a motion to dismiss the Petition on the grounds that the only remedy afforded by § 112.534 is injunctive relief, and it does not create a right to injunctive relief in the form of overturning discipline.  City Miami v. Cosgrove, 516 So. 2d 1125 (Fla. 3d DCA 1987); Migliore v. City of Lauderhill, 431 So. 2d 986 (Fla. 1983) (adopting Migliore v.

City of Lauderhill, 415 So. 2d 62, 65 (Fla. 3d DCA 1982)).  Respondent further argued that injunctions can only restrain the commission of future injury and cannot prevent what has already occurred.  After hearing, the Circuit Court agreed and entered an Order Granting Respondent’s Motion to [Dismiss] with Prejudice, citing to Quadomain Condo. Ass’n, Inc. v. Pomerantz, 341 So. 2d 1041, 1042 (Fla. 4th DCA 1977), and City of Coral Springs v. Florida Nat’l Props., 340 So. 2d 1271, 1272 (Fla. 4th DCA 1976).  

Contemporaneously with the action in Circuit Court, Bradshaw filed an appeal of his discipline to the Division of Administrative Hearings (“DOAH”).  The matter was assigned to an Administrative Law Judge (“ALJ”).  As stated by the ALJ, the only two issues for determination were whether Bradshaw engaged in conduct prohibited by the rules promulgated by the PCSO, and if so, whether the disciplinary action taken against Bradshaw was consistent with action taken against other members of the Sheriff’s Office.

The ALJ conducted a final hearing on January 31, 2008, and issued a Recommended Order on April 18, 2008.  Addressing first Bradshaw’s 180-day requirement for the completion of the investigation, the ALJ rejected Bradshaw’s argument that the 180-day period began on August 10, 2007, the date of the accident.  Rather, the ALJ determined that the 180-day period began on December 13, 2006, when the PCSO received notice of Deputy Bradshaw’s excessive speed from Lt. Pelella’s crash reconstruction report.  The operative date is immaterial, as the ALJ used the later date in its computation and still determined that the investigation was not completed within 180 days as required by Florida Statutes § 112.532.  However, the ALJ also concluded that the exclusive remedy for a violation of the 180-requirement is an injunction issued by Circuit Court, rather than seeking a relief through administrative action.

Upon consideration of the evidence, the ALJ found that the PCSO proved by a preponderance of the evidence that Bradshaw violated Sections 3.3 and 3.4(d) of PCSO’s General Order 3-1[2] and General Order 15-2[3] by failing to drive with due regard for the safety of all persons. 

The ALJ further found that the disciplinary action taken was reasonable and consistent with the disciplinary actions taken against other members of the PCSO.  The PCSO acknowledged that the usual procedure following a crash is a review of the matter by the Pursuit Review Board and the Crash Review Board, but this crash was investigated by the PCSO’s Administrative Investigations Division and presented to the Administrative Review Board, ostensibly because of the seriousness of the crash.  The ALJ found that, although the record demonstrated no previous incidents involved “similar” circumstances or would otherwise warrant similar punishment, the discipline imposed on Bradshaw was commensurate with the degree of his deviation from his duty to drive with due regard for the safety of all persons.  In short, the ALJ concluded that “the disciplinary action taken against Deputy Bradshaw was reasonable and consistent with the disciplinary action taken against other members of the Sheriff’s Office.”

Bradshaw filed timely Exceptions to the ALJ’s Recommended Order, asserting that the ALJ erred in finding that the Circuit Court had exclusive jurisdiction to consider the 180-day limitation rather than allowing him to raise it in the administrative proceeding.  More specifically, Bradshaw argued that without any legal remedy to address the 180-day rule violation, he was deprived of due process that is guaranteed to him by the Police Officer’s Bill of Rights, Florida Statutes § 112.532(6)(a).  By his argument, the section operates as a bar to agency discipline, and after 180 days passed from the time the PCSO learned of the alleged misconduct, it was without jurisdiction to discipline Bradshaw. 

The PCSO filed a response in support of the ALJ’s decision.  Although the PCSO acknowledged the ALJ’s finding that the PCSO failed to administer the discipline with a 180-day time frame, it again argued that a Circuit Court injunction is the exclusive remedy for violations of the Police Officer’s Bill of Rights; injunctive relief in the form of a reversal of the discipline could not be sought through the administrative proceedings; and the ALJ’s decision was correctly based on statutory language and relevant case law interpreting the statute.  According to the PCSO, Bradshaw was afforded due process, i.e., injunctive relief from the Circuit Court, but he simply failed to take advantage of that opportunity within the time that it was available to him.

A quorum of four out of five members of the Board conducted a hearing on the matter on June 9, 2008.  By a vote of 2-2, the Board was unable to reach a majority decision with respect to adopting, rejecting, or modifying the ALJ’s findings of fact, conclusions of law, and recommended penalty.  Thus, in its Final Order rendered on June 12, 2008, the Board sustained the PCSO’s personnel action in accordance with § 8(6) of the Special Act[4] because the Board was unable to reach a majority decision.  The Board’s Final Order advised:

The parties are hereby notified of the right to appeal this Final Order to the Second District Court of Appeal by filing notice of intent to do so upon the Clerk of the Court and the Pinellas County Sheriff’s Civil Service Board within thirty (30) days of the date of this Order in accord with Fla. Stat. § 120.68 and the Florida Rules of Appellate Procedure.

 

Instead of filing an appeal to the Second District Court of Appeal, Petitioner commenced this action by filing a Petition for Writ of Common-Law Certiorari from the Pinellas County Sheriff’s Civil Service Board, asking this court to review and overturn the Board’s Final Order and rescind the disciplinary action imposed on him. 

Sitting in its appellate capacity and conducting certiorari review of the Board’s actions, the Circuit Court must consider (1) whether the Petitioner was afforded procedural due process; (2) whether the essential requirements of law were observed; and (3) whether the administrative order is supported by competent substantial evidence.  Haines City Cmty.  Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).  “[T]he circuit court functions as an appellate court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.” Id.; see also County of Volusia v. City of Deltona, 925 So. 2d 340 (Fla. 5th DCA 2006). 

Petitioner asserts that the Board departed from an essential requirement of law by adopting the Recommended Order of the DOAH, which concluded incorrectly that injunctive relief granted by the Circuit Court is the exclusive remedy for noncompliance with § 112.532(6)(a).  According to Petitioner, the lack of any legal remedy to address the 180-day violation is a deprivation of due process afforded to him by the Police Officer’s Bill of Rights.  Petitioner again argues that § 112.532(6)(a) operates as a statute of limitation that divests the PCSO of jurisdiction to impose discipline against him; that the ALJ erred when he opined that he lacked jurisdiction to rescind the discipline; and that the Board erred by adopting the Recommended Order.

The Respondent filed the instant Motion to Dismiss Petition for Writ of Certiorari for lack of jurisdiction.  It argues that the Circuit Court lacks original jurisdiction to review the Board’s Final Order by certiorari, and instead judicial review of the Final Order must be raised as a direct appeal to the Second District Court of Appeal in accord with the Special Act, the Administrative Procedure Act (“APA”), and the Florida Rules of Appellate Procedure.

Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100(c)(2) grant the Circuit Courts original jurisdiction to issue writs of certiorari and to “review quasi-judicial action of agencies, boards, and commissions of local government, which action is not directly appealable under any other provision of general law but may be subject to review by certiorari.”  Id.  The APA provides:  “A party who is adversely affected by final agency action is entitled to judicial review. . . . Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”  § 120.68, Fla. Stat.  The act defines “agency” as “[e]ach officer and governmental entity in the state having jurisdiction in one county or less than one county, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.”  § 120.52(1)(c), Fla. Stat. 

Section 12 of the Special Act exempts the actions of the Board and the Sheriff from the APA unless they elect to proceed under § 11(8), which allows the Board to elect to contract with the DOAH to have the hearing conducted before an ALJ pursuant to the APA.  Here, the Board has elected to proceed under § 11(8) by contracting with the DOAH to have ALJs conduct hearings.  Therefore, the provisions of the APA apply and govern judicial review of Board decisions.

In response, Bradshaw argues that the Board is not an “agency” governed by the APA because the Board is not “expressly made subject” to the act.  According to Bradshaw’s interpretation of the Special Act, § 11(8) only speaks to the “limited authority” to contract with the DOAH.  Bradshaw relies on Booker Creek Preservation, Inc. v. Pinellas Planning Council, 433 So. 2d 1306 (Fla. 2d DCA 1983), for the proposition that an intra-county organization created by special act of the legislature, such as the Pinellas Planning Council in that case, is not an agency subject to the APA where no general or special law or existing judicial decision makes it so.  However, in contrast to Booker Creek, the plain language of Special Act § 12, coupled with § 11(8) and the Board’s election to contract with the DOAH to conduct hearings, clearly place the actions of the Board and the Sheriff within the provisions of the APA. 

Given the applicability of the APA to the Board’s disciplinary action taken against Bradshaw, § 120.68 provides that Bradshaw was entitled to judicial review by direct appeal to the Second District Court of Appeal rather than by petition for writ of certiorari to this Court.  Therefore, in accordance with Rules 9.030(c)(3) and 9.100(c)(2) of the Florida Rules of Appellate Procedure and the Administrative Procedures Act, this Court lacks jurisdiction to review the Board’s adverse decision and to reverse the disciplinary action.[5]

 

 

 

Accordingly, it is

            ORDERED AND ADJUDGED that the Motion to Dismiss Petition for Writ of Certiorari is granted, and the Petition for Writ of Common-Law Certiorari from the Pinellas County Sheriff’s Civil Service Board is dismissed for lack of jurisdiction.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ________ day of February 2010.

 

 

Original order entered on February 24, 2010 by Circuit Judges Amy M. Williams,

Peter Ramsberger, and Mark I. Shames.

 

 

           

                                                           

 

 

 

 

 

 

 

 

 

Copies furnished to:

 

KENNETH J. AFIENKO, ESQUIRE

Kenneth J. Afienko, P.A.

560 1st Avenue North

St. Petersburg, FL  33701

Attorney for the Petitioner

 

SUZANNE M. MUCKLOW, ESQUIRE

Office of the County Attorney

315 Court Street

Clearwater, FL 33756

Attorney for Respondent

 

 



                [1]The parties in that action stipulated to the dismissal of the Fraternal Order of Police as a Petitioner for lack of standing.

[2]These sections provide: 

3.3.  Knowledge of, and Obedience to, Laws and Rules and Regulations – Every deputy is required to establish and maintain a working knowledge of all laws and ordinances in the county.   All members shall observe and obey all General Orders, Procedures and Rules and Regulations issued by the Sheriff’s Office.  In the event of improper action or breach of discipline, it will be assumed the member was familiar with the applicable law, policy, or procedure. 

3.4.  Performance of Duty – All personnel shall take appropriate action to preserve the peace and perform their duties as required or directed by law, agency rules, policies and procedures, or other lawful orders of a supervisor.

 

[3]Section 15-2.1(D) establishes guidelines for a deputy’s operation of a vehicle during a pursuit, and it specified that its provisions “shall not relieve the driver from the duty to DRIVE WITH DUE REGARD FOR THE SAFETY OF ALL PERSONS, nor shall such provisions protect the driver from the consequence of his or her reckless disregard for the safety of others.” (emphasis in the original). 

               

[4]Ch. 89-404, Laws of Fla., amended by Ch. 90-395, Laws of Fla.

[5]Upon this conclusion, the Court does not address whether the PCSO, rather than the Board, is the proper party respondent.